Recently released e-mails offer a glimpse at the relationship between state and federal regulators while New York weighs large-scale natural gas development. / AP file photo

Written by

ALBANY — A trove of recently released e-mails offers an intriguing glimpse at the relationship between state and federal regulators while New York weighs whether to green light large-scale natural gas development.

Several hundred messages made available under the state open records law provide clues as to how the state Department of Environmental Conservation and the U.S. Environmental Protection Agency have interacted since 2008, when New York launched a regulatory review of high-volume hydraulic fracturing.

The e-mails show near-constant contact between the two agencies over the four-year period. The exchanges, while always cordial and largely cooperative, at times show areas of disagreement.

"As a general matter, we do not believe that EPA region 2 should be holding NY to a different standard than epa holds other regions to," DEC Commissioner Joe Martens wrote in January to EPA Regional Administrator Judith Enck.

Other e-mails revealed previously unknown proposals from the EPA, including one for a joint regulatory program among various agencies and a 2011 plan to test private water supplies in New York's gas-rich Marcellus Shale region before drilling operations proceed.

Gannett's Albany Bureau filed a request for the e-mails after the state Court of Appeals ruled in March that correspondence between DEC and EPA was not exempt from the Freedom of Information Law.

Martens' Jan. 5 e-mail to Enck came in response to the EPA's proposed comments on the state's environmental review of high-volume hydrofracking — a technique in which water, sand and chemicals are injected into underground shale formations to release natural gas.

At the time, a public response period to the DEC's proposed rules and guidelines for hydrofracking was drawing to a close. High-volume hydrofracking is on hold in New York until that review is finalized, which is expected at some point this year.

Martens, apparently after being shown a working draft of the EPA's eventual response, asked Enck if they could speak on the phone to air the DEC's concerns.

"I discussed with staff and we continue to have deep concerns about many of agency's proposed comments," Martens wrote. The two administrators agreed to speak on the phone the next day.

Asked about Martens' e-mail, DEC spokeswoman Emily DeSantis said the regional EPA office "made numerous recommendations that are not part of any federal regulation or other federal requirement."

"Regardless," she said, "if high-volume hydraulic fracturing moves forward in New York, it will move forward with the strictest standards in the nation to ensure New York's drinking water and other natural resources are thoroughly protected."

One week later, Enck sent Martens and other DEC officials a copy of the EPA's final comments — a meticulous, line-by-line critique of the DEC's 1,500-page report, accompanied by a cover letter that was complimentary to the state's approach but light on specifics.

The ensuing e-mails were redacted by the DEC. The redacted messages, according to the agency, were a "chain of intra-agency communications which is not statistical or factual tabulations of data, instructions to staff that affect the public, final agency policy or determinations, or external audits" that are classified as public under the state Freedom of Information Law.

EPA's final comments were hailed by environmental groups for offering extensive, specific criticisms of the DEC's draft review, while drilling supporters pointed to a cover letter praising the state for its deliberate approach to crafting regulations.

Scott Kurkoski, a Broome County-based attorney for the Joint Landowners Coalition of New York, said he believes the federal government should stay out of the state's regulatory program.

"I think if you look at how every state in this country has regulated this industry, there would be no question in your mind that states have the best ability to regulate the industry on their own, without interference from the federal government," he said.

EPA proposed water tests

In another set of e-mails last June, the EPA organized a conference call with the state DEC and Health Department. The EPA gave a presentation on the federal agency's intentions to sample the water of private water wells in areas of New York where drilling and hydrofracking are eventually expected to occur.

The EPA had gone as far as to draft a sample letter that would be sent to homeowners living in the region, assuring them the test results would be provided and that the agency would cover the cost of the test.

"While the length or outcome of (New York's hydrofracking) moratorium is uncertain, the Environmental Protection Agency (EPA) would like to take the opportunity to obtain baseline water quality data while restrictions on drilling and hydraulic fracturing are in effect," reads the letter, which was attributed to Douglas McKenna, chief of the EPA Water Compliance Branch.

Homeowners in Pennsylvania have run into roadblocks when trying to prove nearby gas-drilling operations contaminated their water wells, often because there wasn't any data available on the quality of their water before the industry moved in.

According to a slideshow presentation included with the e-mails, EPA had planned on concluding its water testing by the end of 2011.

The project never got off the ground, according to EPA spokesman Bonnie Bellow.

"We consider many types of projects on a range of issues and sometimes explore them with state agencies," Bellow said. "Decisions about whether to pursue such projects or studies are based on priorities, resources and a variety of other factors."

A December e-mail, however, shows the DEC may have its own plans for making testing data public.

"We are considering make private drinking water well data publicly available and are discussing with the State Department of Health how to do so consistent with privacy concerns," DEC Deputy Commissioner Eugene Leff wrote to an EPA official. "In order to release private well water data to the general public, the Department of Health requires resident identifiers to be redacted."

Katherine Nadeau, a program director for Albany-based Environmental Advocates of New York, called it "a very interesting idea depending on what's actually in the database."

"Right now, there isn't a whole lot of information out there about groundwater statewide," she said. "Of course, the devil's always in the details and we're not going after private information, but to have a better sense of groundwater quality right now and how we might better protect, that's certainly very interesting."

A 2011 set of proposed guidelines for gas drillers requires companies to test all water wells within 1,000 feet of a gas well.

In the same e-mail, Leff indicates the DEC will expand its review of hydrofracking to "consider potential impacts of pipelines in a generic manner" before its report is final. If drillers were allowed to move into New York, the state's pipeline system would have to be vastly expanded.

DeSantis, the DEC spokeswoman, said nothing is final.

"No final decisions have been made but, as noted, landowners' privacy concerns are being considered," she said.

EPA sought joint oversight

In December 2008 — five months after the state launched its hydrofracking review and before a first draft was released in 2009 — then-EPA Regional Administrator Alan Steinberg mailed the DEC, the state Department of Health and the New York City Department of Environmental Protection with a proposal. The state, city and federal agencies should have joint oversight of drilling in the New York City watershed, he wrote.

"With overlapping authorities and shared goals related to watershed protection, we believe that NYSDEC, NYSDOH, NYCDEP and EPA can and should develop a coordinated review and oversight program to ensure that gas drilling in the New York City watershed is implemented responsibly and with adequate safeguards to protect the environment and water supply," Steinberg wrote.

Much of western portion of the city's watershed in the Catskills lies within the Marcellus Shale region.

The proposal came during then-Gov. David Paterson's administration, and no formal response was included in the provided e-mails. But it was eventually rendered moot: the DEC's revised hydrofracking proposals, which were released in 2011, prohibit any surface drilling within the New York City watershed.

Enck succeeded Steinberg in 2009.

EPA sought drilling data

At various points over the past four years, EPA officials have asked DEC for an estimate on the number of drilling and hydrofracking permits it expects to issue should the process be allowed in New York, the e-mails showed.

In June 2010, DEC Mineral Resources Director Bradley Field said the DEC's staffing levels would have a significant impact on the number of permits to be issued. While one gas-drilling operator had estimated a peak of about 2,000 gas wells per year, Field said that number wouldn't be possible without a significant bump in staff.

"I don't believe we would see those numbers for several years, if at all, after the (environmental review) is final," he wrote. "My guess is 75-100 per year with existing resources — which are not slated to increase anytime soon."

At the time of Field's e-mail, the DEC's staff had been cut significantly in the preceding years, but has largely been kept steady since then. The department has shed more than 850 full-time jobs since April 2008.

Last year, the agency estimated it would need 140 new staffers the first year hydrofracking permits are allowed, and a total of 220 by the fifth year.